Senator Ludlam's crime and punishment

The discovery that he was a dual citizen, holding New Zealand citizenship, led to Western Australian Greens Senator Scott Ludlam announcing his resignation after nine years. He left New Zealand with his parents as a child of three before settling in Australia as an eight year old. He took Australian citizenship in his teens and presumed that was the end of the matter. This was an error for which he takes full responsibility. The Greens have lost their co-deputy leader.

Ludlam's departure means that the Senate has now had three senators, including Bob Day, the Family First leader, from South Australia, and Rod Culleton of the One Nation Party, who was also from Western Australia, declared ineligible to sit in the Parliament in the 12 months since the last election.

One is an accident but three is an epidemic. This is a disturbing turn of events. Furthermore, another case with some similarity to that of Day, involving David Gillespie, the National Party Member for Lyne, is currently under consideration.

Each of the three senators fell victim to Section 44 of the Constitution, which lays out the circumstances in which any person is 'incapable of being chosen or of sitting as a senator or a Member of the House of Representatives'.

The first of the clauses, which caused Ludlam's downfall, concerns citizenship and related matters. The second and third clauses, which brought down Culleton, refer to criminal conviction and bankruptcy/insolvency. The fourth and fifth clauses, Day's problem, concern matters to do with financial connections to government, such as holding offices of profit, pecuniary interest and related matters.

Taken together the purpose of the Founding Fathers was to rule out various types of person who were unfit to serve as parliamentarians because of personal incapacity, treason, conflict of allegiance, conflict of interest or potential corruption. The concerns of the Constitution are understandable, but like all constitutional provisions are subject to interpretation, and this can be done by the High Court either flexibly or in a black and white manner.

Interpretation of some provisions, such as Section 44(v) on direct and indirect pecuniary interest, were interpreted narrowly by the High Court back in 1975, but broadly in 2016 when brought down on Day's head. The matter of dual citizenship, probably not envisaged when the Constitution was drafted in the 1890s, has been held to be contrary to Section 44 (i). The historical overlap between British and Australian citizenship, including the right to vote, has muddied the waters.

In 1987 Robert Wood, elected as a NSW Senator for the Nuclear Disarmament Party, was ruled ineligible because he was a British citizen though a long-term Australian resident. Then in 1998 One Nation's first elected Senator, Heather Hill, was ruled ineligible because she had failed to renounce her British citizenship when she became an Australian citizen. She had come to Australia as an 11 year old.

"Constitutional lawyers may disagree but many of the 'crimes' seem to be technicalities and/or misdemeanours rather than dangerous breaches of the spirit of the Constitution."

Does the punishment fit the crime? My worry is that those caught out are generally small rather than big fish in terms of the legitimate concerns of the Founding Fathers with maintaining the integrity and high-standards of the new Australian Parliament. Constitutional lawyers may disagree but many of the 'crimes' seem to be technicalities and/or misdemeanours rather than dangerous breaches of the spirit of the Constitution. Potential political advantage blurs any sympathy for those ruled out even when honest mistakes have clearly been made.

There are several concerning consequences. Even though in these cases the balance of the Parliament has not been changed, because the replacements after an AEC recount or an internal party decision have come from the same party, the choice of these replacements has only indirectly been in the hands of voters. Often candidates down the ticket are just place-fillers rather than the best available.

The situation has arguably led to a weaker Parliament, though the replacements have been interesting people. Certainly it has led to a less experienced Senate at a time when the cross-bench and the Greens are playing a key role under great pressure.

Finally, the adverse impact has fallen disproportionately on minor parties and independents, which is not a good look at all.

John Warhurst is an Emeritus Professor of Political Science at the Australian National University.

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It seems that these days no institution is safe from the poisonous erosion of self interest nor subject to the demands of ethical behaviour and its policing. After all, in the modern world we now have rights and these come first before any consideration of ethics and its policing and serve the individual rather than the common good. As far as Senator Ludlam is concerned, however, it seems he was genuinely unaware of his situation and it is understandable that since he has grown up here from the age of 3 months he is not a Kiwi regardless of what the paper work says. This clearly needs to be sorted out so that similar unfortunate confusions don't happen again and ruin some innocent's career. I wonder how many other members are dual citizens - wouldn't be surprised if there are a few more occupying parliamentary seats or advising government in various capacities.john frawley | 17 July 2017

John
Your thoughtful comments succinctly crystallize something that has been worrying me for some time. Matt Casey | 17 July 2017

Agree with your thoughts,John but I have a wider concern.
These "technicalities" ought not to have occurred.
I would have thought the Electoral Commission has a role to play here.
I presume that candidates for election complete a form.
Should it not ask eg are you a national of another country,if so, then you are not eligible to stand for election etc.
Seems to me we are dealing with these things after the horse or horses have well and truly bolted.
There must be a better way.Let's focus on ensuring this does not happen again.
There is a reasonably easy way of sorting this.
Let's get the form of application for election under the microscope and and put s44 to bed.
Peter Hoban | 18 July 2017

IT is worth reading the Question on AEC NOmination forms
"I am not, by virtue of section 44 of the Constitution,
incapable of being chosen or of sitting as a Member of
the House of Representatives (see page 1*) OPtional answers Yes or No.
S44 of COnstitution is also a negative "Shall be incapable of being chosen"
Does a QUestion with a double negative in it require relating to a negative in Constitution require a YES or a NO answer to be a positive response?
UNfortunatley for Ludlum the poor wording of the QUestion does not help him,. AS he said S 44 and HIgh COurt interpretauion of same are clear.
IN my time I have had to tell two nominees that they can not stand and a further one that she had to resign her job and renouncer her citizenship of Free China to stand as a candidate. IN reality every prime minister up to John Curtin would be ineligible to stand for Parliament under current High Court interpretation of S44. John Curtin and his pre-decessors were not Australian citizens. Not a single person was an Australian Citizen until 1948.
I feel sorry for Ludlum but it is reasonable to expect someobne standing for Parliament to be conversant with COnstitution and it is reasonable to expect those standing for parliament to check their eligibility.
S 46 imposes a penalty of 100 Pounds per day to anyone who sues him for it. Depending on interpretation MR Ludlum may in fact owe every person who chooses to sue him 329,500 Pounds This may be a potential debt of $823 Trillion Pounds. HIs potential debt is greater than the Australian Debt clock com estimates the Australian National Debt is.
The Australian Constitution does need revision. I suspect a well worded Referendum would pass because these provisions of Constitution cause all political parties a great deal of problems. Andrew Jackson | 18 July 2017

Nb Citizenship Act: Perhaps this might also be a warning to all known and unknown dual citizens now that Dutton has -or will have-a political right to delete their Australian citizenship in his no doubt (?) unpolitical judgement for almost any infringement. These issues interact and mens rea appears to have no place in these reguoations or the now-purely political decisions affecting peopleMarc wigan | 18 July 2017

A great article John.
Since this article was written, another Greens senator, Larissa Waters, has also felt that she should resign.
It seems to me that some action needs to be taken to ensure that this is not repeated.
I am in agreement with Peter Hoban that the Electoral Commission surely has a role to play in the process to thoroughly check the status of candidates to ensure that they are eligible to stand for election. The Commission should also give prospective candidates accurate advice so that they can take appropriate steps to ensure that they will not be ineligible to stand.eg by renouncing their other citizenship.
Surely, this would prevent them from being put into situations which are very embarrassing for them personally and also for the nation as a whole.Andrew (Andy) Alcock | 18 July 2017

All of this brings to mind that one of the proposed changes to citizenship laws (which has to my knowledge gone unnoticed) is that the word 'loyalty' has been replaced by the much stronger term 'allegiance'. Personally, as a holder of dual citizenship, I find this alarming.When i became an Australian citizen in 1980 I had no hesitation in pledging loyalty to Australia.But can a dual citizen actually owe allegiance to both countries? I rather doubt this.Margaret | 18 July 2017

And now Larissa Waters, too!Anthony Grimes | 18 July 2017

There should be no such thing as dual citizenship for Australians. You should be required to renounce previous nationality upon becoming an Australian citizen, and a little time should be given to you after becoming an Australian citizen to fulfill the renunciation requirements of the previous power (or, at least, those elements of renunciation that are reasonable). An Australian citizen who applies for citizenship elsewhere should forfeit nationality. Australia can always negotiate with another country for reciprocity for each other's nationals. As for Larissa Walters, it took her the figurative five minutes to work out her situation after Ludlum's predicament became public. Working out your nationalit/y/ies isn't hard. It's just a matter of remembering to do it in a timely manner. The major parties seem to have no administrative problem with this. In any case, now that the issue has blown up in the way it has, it's become a non-issue as everybody who needs to know now knows the Section 44 drill. If we can have by-elections for the House, why not the Senate? Why should the Greens (or any other party represented in the Senate) benefit from a previous wave of the popular will? Roy Chen Yee | 19 July 2017

A bye-election for the senate, Roy, would be contrary to the purpose of that chamber. The Senate was not meant to simply reflect any 'waves of popular will', either past or present; that is the role of the House. The Senate's construction - fixed six-year terms, half elected every three years - and method of election - proportional representation in multimember electorates - is inherently, and deliberately, conservative. It's a precaution against sudden radical swings in the 'popular' vote and against governments with razor thin majorities in the lower house. In the current circumstances, the casual vacancies will not be filled by a decision of the Party who candidates were ineligible, but by a count back of the votes cast at the previous election. Ginger Meggs | 25 July 2017

If you're a dual citizen and want to run for parliament, read the documents and tick the right boxes before you run. This isn't a n ethical matter, but simply a bureaucratic one.If you have dual citizenship and want to run for parliament, renounce your second citizenship.. If you're an Aboriginal person, you should be mentioned in that same constitution and that is THE issue to be discussed at the moment. Dual citizens can simply do their paperwork and comply as far as I'm concerned!AURELIUS | 05 August 2017

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